Courtroom discovery problems do not result in dismissal

November 5, 2011

Randolph County Circuit Judge Jaymie Wilfong did not dismiss charges Friday against an Elkins man facing four felony drug charges although the court heard information regarding problems with discovery filed by the Prosecuting Attorney's Office. Several other individuals also appeared in the court.

Robert Lee Scott, 30, of Lot 49, Airport Trailer Park, Elkins, appeared with attorney James Hawkins for a pre-trail conference on Friday. Scott is charged with one count of delivery of a controlled substance, a felony; and three of the four indictments charge him with one count of conspiracy, a felony.

Once the hearing began, Hawkins approached the bench and submitted a motion to dismiss the charges because of what he argued as problems with discovery previously ordered by the court.

Article Photos

Scott

Hawkins said he was not provided with a lab report that would identify the substance Scott was accused of having and delivering. He also said the discovery filed did not name the expert witness or their credentials.

"Mr. (Andy) Mendelson (Randolph County Assistant Prosecuting Attorney) gave me a copy of the lab report this morning, dated July 16," Hawkins said on Friday. "It is my position the state did not provide the information in a timely manner. The state has failed to provide critical discovery."

Mendelson said that on July 15, the state filed discovery and it listed the forensic report, but it was not enclosed. He said the problem was not discovered until Thursday night as he was preparing for the case.

"We found out last night the forensic lab report was not attached," he said. "We got a copy this morning. We have a motion to continue. He (Hawkins) had the right to the lab report. This is our first time in court for this case. We have not heard a motion."

Mendelson described Hawkins' motion to dismiss as a "motion by ambush."

"It (the motion to continue) would solve both the problems," Mendelson said. "It would give him (Hawkins) time to review the report."

Wilfong asked Mendelson what was the purpose of not giving the name of the expert witness. He responded that it was not on purpose and added that the fair thing for both parties would be to continue the case.

"If you look at their discovery report, it states the reports would be included when it is received," Hawkins said. 'They sent a letter stating that if there was any other evidence to let them know. That is not how it works. The fact in the matter is it has been in their possession. It is a due process violation."

Hawkins said the discovery response was signed off by Prosecuting Attorney Richard Busch.

"He should known what is and what isn't in it," Hawkins said.

Wilfong said she was not happy with the discovery, but that it was not enough for a dismissal. She granted Mendelson's request for a continuance and set trail dates for January.

In other court action on Friday, Michael Allen Currence, 30, of HC 71, Box 71, Ellamore appeared with attorney Timothy Prentice and asked for a continuance in his case. Currence is charged with two counts of sexual abuse by a parent, guardian or custodian and one count of distribution and display to a minor of obscene matter, all felonies.

Prentice asked for the continuance saying he has not had enough time to work with the case.

"The state has had time to investigate this," he said. "I have had four months."

Mendelson said he opposed to the continuance because of the victims.

"The state would be remiss not to think of the victims," he said. "One of the alleged victims wants to move out of the area, but has put that on hold because of the trail."

Wilfong granted the continuance and said it would be the last time.

Megan Rae Stottlemyer, 26, of Beverly appeared with attorney Phil Isner and entered into a plea agreement to drop felony charges of delivery of a controlled substance and bringing drugs into a correctional facility, and pleaded guilty to one count of retaliation against a public official. Stottlemyer was indicted on the drug charges in June and for the retaliation against a public official on Monday.

Before accepting the plea, Wilfong arraigned Stottlemyer, and asked her what she did.

"I assaulted a CPS (child protective services) worker," she said. "We exchanged language that I do not want to repeat in the courtroom."

Wilfong asked if Stottlemyer threatened physical violence, and Stottlemyer responded that she said she would "gut" the worker. Wilfong accepted the plea, ordered a pre-sentence investigation and scheduled sentencing for January.

Tammy Marlene Friedman, 39, of 2 Tygart Lane, appeared with Prentice and made a motion for a continuance in the case. Friedman is accused of delivering Klonopin on July 24 and was indicted during the February 2011 grand jury. Prentice presented several medical excuses to why Friedman missed an earlier court date and addressed a plea bargain.

"Last night we received clarification about a plea offer," he said. "She requests that her trial to be continued so she can have more time to think about the plea bargain."

Mendelson said the state was opposed to the continuance.

"I understand she needs time to think about it," he said. "The court ordered today was the last day for a plea bargain."

Wilfong denied the plea bargain and Randolph County Sheriff's Department Chief Deputy M.T. Brady, who was serving as bailiff, presented Wilfong with a capias for Friedman's arrest in Hampshire County. Before she was taken into custody, Friedman made a request for a new attorney, which was denied.

"This case has been continued three times and needs to go to trail," Wilfong said.

After Friedman was taken into custody and removed from the courtroom, she had a medical issue that required the Randolph County Emergency Squad to respond to the courthouse. Wilfong said once she was released from the hospital, she would be placed into custody of the sheriff's department.

Two cases were dismissed without prejudice on Friday as part of plea agreements.